The First-tier Tribunal has ordered a London council to disclose redacted information in a viability assessment that led to the authority allowing a developer to vary the amount of affordable housing on a major site.
The background to the case of Royal Borough of Greenwich v IC and Shane Brownie EA/2014/0122 was a deed of planning obligation dated 23 February 2004 concerning the development of the Greenwich Peninsula.
The commitments entered into by the developers included one that 38% of the more than 10,000 homes to be built would be ‘affordable’.
Following the 2008 financial crisis work on the development stalled. In 2012 there was a risk of a £50m housing grant being lost.
The developers approached the Royal Borough of Greenwich asking to be released from some of their promises to build affordable homes. The revised proposal – affecting 11 plots – moved some of the affordable homes from the more attractive areas of the site which have river views; the number of affordable homes was also reduced by about 500.
One of the developers, Quintain (whose interest has since been bought out by Knight Dragon), commissioned an ‘economic viability report’ from BNP Paribas.
Dated 23 January 2013, it stated on the cover “FOIA exemption Sections 41 and 43(2) Private and Confidential”. Paragraph 1.4 of the report said the report was being provided to the council on a confidential basis. It also requested that the report not be disclosed to third parties under FOIA.
The FTT noted that companies could ask for exemptions or exceptions to be considered, but they were not decision makers in relation to freedom of information. “That task falls to the public authority, the ICO and, sometimes, the Tribunal," it said.
Greenwich asked another firm, Christopher Marsh & Co, to review the BNP Paribas report. Then, on 28 February 2013 the council’s planning board approved the proposed variation to the deed of planning obligation.
Two months later Knight Dragon approached the council again for the variation itself to be varied. This was approved by the planning board on 25 June 2013.
On 12 June a local resident, Shane Brownie, submitted an FOI request to obtain a copy of the financial viability report.
The council disclosed both the BNP Paribas report and a letter from Christopher Marsh & Co. However, both documents were subject to redactions under regulation 12(5)(e) governing confidential commercial information.
It was these redactions that were at the heart of the dispute. The Information Commissioner overturned the council’s decision to redact the documents. Greenwich appealed to the First-Tier Tribunal.
The FTT conducted a public interest balancing exercise as the exception under regulation 12(5)(e) only applies if in all the circumstances of the case, the public interest in maintaining it outweighs the public interest in disclosing the information. The presumption is in favour of disclosure.
The Tribunal said two factors told particularly in favour of disclosure:
- The number of affordable homes to be provided on what was an enormous development, as well as their location, was an important local issue on which reasonable views were held strongly on both sides;
- This was a case where a company, robust enough to take on the development of a huge site over a period of 20 years, acquiring its interest in 2012 and increasing its share in 2013, immediately asked to be relieved of a planning obligation freely negotiated by its predecessor. “It justifies this change on the basis of a downturn in house prices it knew about at the time of purchase, using a valuation model that looks at current values only and does not allow for change in the many factors that may affect a valuation over time. It seems to us that in those circumstances the public interest in openness about the figures is very strong.”
The Tribunal said: “Having weighed all the evidence and arguments, in our judgement the admittedly important public interests in maintaining the regulation 12(5)(e) exception in this case do not outweigh the public interest in disclosing the information.”
The residents were represented by Michael Armitage, having also been advised during the proceedings by Julianne Kerr Morrison (both on a pro bono basis). Gerry Facenna acted for the Information Commissioner. All three are barristers at Monckton Chambers.